Age legislation rules

AGE DISCRIMINATION measures come into force on 1 October 2006. Equivalent legislation is expected for Northern Ireland as of the same date. Age regulations are likely to have a greater impact in the workplace than any previous discrimination legislation. The following areas are not exhaustive and professional advice should be sought to ensure compliance.

Recruitment: employers should check recruitment procedures, including job advertisements ‹ text and imagery, job descriptions and person specifications to ensure that they do not impose unjustifiable requirements relating to age, such as asking for school leavers, mature persons or those with little or considerable experience. Reconsider the use of certain terms such as Œoffice junior¹ and Œsenior consultant¹. Requiring information on age or the provision of a photograph on an application form is not necessarily age discriminatory but, to avoid doubt, employers may prefer to defer such matters to a monitoring form or to a later stage in the recruitment process. Where recruitment agencies are used, their instructions should be reviewed to ensure they are not being asked to act unlawfully.

Employers should note that relying solely on internet-based recruitment methods might be challenged as indirect age discrimination if fewer potential applicants from one age group are able to use the requisite technology than from another age group.

Equality training: employers should ensure that all employees are made aware of the unacceptability of age discrimination, and those who will be conducting interviews and making recruitment decisions are aware of the provisions of the regulations and receive appropriate training.

Terms and conditions: employers should check their written statements of main terms, employee handbooks and any supplementary documentation. Any terms or conditions that are age-related or which are dependent on length of service should be scrutinised. It is important to note that not all age-related provisions will be unlawful. Employers should start this process as soon as possible because, if contractual changes are required, it may be necessary to consult and agree these with employees, employee representatives or trade unions and the first dismissal notices may need to be issued as early as the beginning of July.

Training and performance appraisal: review training policies to make sure training is open to all ‹ do not assume that older people are not interested in career development. Review attitudes to performance appraisal and capability issues. Expectations and dealing with unsatisfactory performance should be the same regardless of age.

Redundancy policies: review redundancy policies as use of Œlast in, first out¹, Œfirst in, first out¹, or length of service criteria in an appraisal based system to select employees for redundancy is likely to be discriminatory. Selection based on part-time status may in some circumstances constitute indirect age discrimination against older workers.

Check whether any enhancements in respect of redundancy pay mirror the statutory redundancy pay scheme sufficiently to fall within the specific exemption. If not, objective justification of any discriminatory element, or amendment, will be required. The legislation on collective redundancies requires the employer to disclose certain information in writing. This includes the proposed method of selection and of calculating redundancy payments. For large scale redundancies this information should be provided at least 90 days before the dismissals take effect. Consequently, for redundancy exercises that overlap 1 October 2006, information provided before that date may need to be amended and reissued where notices of dismissal are to be issued on or after 1 October 2006.

Retirement: employers should check their provisions relating to any normal retirement age and retirement procedures. Clients should also check whether they have any employees, regardless of age, due to retire between 1 October

2006 and 31 March 2007 and ensure that they seek professional advice to discuss the transitional retirement procedure provisions contained in the Regulations. Employers should also remember that any employees who are due to retire on or after 1 April 2007 must normally be given between six and 12 months written notification of the intended date of retirement and of their right to request to continue working. Remember, compulsory retirement is a form of dismissal and the penalties facing an employer who gets it wrong will be serious.

Peter Done

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